C-14/67

(Regulation No 3, Article 28, Annex G)'

1. In so far as it takes 'assimilated 2. Article 28 of Regulation No 3 of the periods' into account, Regulation No Council of the EEC concerning social 3 intends neither to modify nor sup­ security for migrant workers, together with Annex G thereto, does not re­ plement national law, provided that quire the institutions of the Federal the latter observes the provisions of Republic of Germany to take into Article 48 to 51 of the EEC Treaty. account a period completed under In particular, Regulation No 3 re­ the legislation of another Member fers to the conditions under which State in determining whether 'sub­ national law will regard a given stitute periods' within the meaning period as being equivalent to insur­ of German legislation must be taken ance periods properly so-called. into account.

In Case 14/67

Reference to the Court under Article 177 ot the EEC Treaty by the IVth Senate of the Bundessozialgericht (Federal Social Security Court) for a pre­ liminary ruling in the action pending before that court between

1 — Language of the Case: German.

JUDGMENT OF 5. 12. 1967 — CASE 14/67

composed of: R. Lecourt, President, A. M. Donner and W. Strauß (Rap­ porteur), Presidents of Chambers, A. Trabucchi, R. Monaco, J. Mertens de Wilmars and P. Pescatore, Judges,

Advocate-General: J. Gand Registrar: A. Van Houtte

gives the following

JUDGMENT

Issues of fact and of law

I — Origins of the case ployed in France as a free worker in­ sured against invalidity under French (1) For a period of sixty-one months legislation. between 1942 and May 1947, the plain­ In 1951 he moved and settled in Ger­ tiff, the respondent before the Bundes­ many where, until 1961, he completed sozialgericht (hereinafter referred to as insurance periods of one hundred and 'the plaintiff) was at first in the Ger­ six months in all under German legis­ man army and then a prisoner of war lation. in France. As a result of an illness which he con­ From May 1947 to February 1951, that tracted, the defendant, the appellant be­ is for forty-five months, he was em- fore the Bundessozialgericht (hereinafter

referred to as 'the defendant') awarded request the Court to give a preliminary him an invalidity pension from July ruling on the following question: 1961 until his recovery; on the same 'Must Article 28 (1) (b) of Regulation grounds the plaintiff received a pension No 3 of the Council of the European under the French social security sys Economic Community concerning social tem. security for migrant workers . . . or With regard to the amount of the pen Annex G (I) (B) to (D) (to that regu sion due in Germany a dispute arose lation), or those provisions read to between the parties to the main action, gether, be interpreted to mean that, in regarding the interpretation of certain determining whether 'substitute' periods provisions of the Reichsversicherungs- must be taken into account under Ger ordnung, the relevant legal provisions. man legislation, the contributions paid Under the terms of those provisions, the under the provisions in force in another periods of military service and of cap Member State of the European Econ

less Article 27 (1) and Article 28 (1) burg, the competent court of first in (b) of Regulation No 3 together with stance, were dismissed; the Landesso Article 13 (1) (a) of Regulation No 4 zialgericht, Baden-Württemberg, to of the Council of the EEC (Official which he appealed, granted his suit, on Journal of 16 December 1958, p. 597) the particular ground 'that, in cases such give grounds for the view that, in order as the present, the provisions of Annex to calculate the benefit due, the insur G (I) of Regulation No 3 must be ap ance institutions of each of the Member plied mutatis mutandis in favour of the States must treat the periods completed person concerned; the defendant ap in other Member States in 'the same way pealed against this decision to the Bun as if they had been completed in their

JUDGMENT OF 5. 12. 1967 — CASE 14/67

(1) of Regulation No 3, as amended by Ill — Summary of the writ­ Article 6 of Regulation No 130/63 of ten observations sub­ the Council of the EEC of 18 Decem­ mitted under Article ber 1963 (Official Journal of 28 Decem­ 20 of the Statute of ber 1963, p. 2996), provides that 'In the Court of Justice determining whether periods which un­ of the EEC der German legislation constitute periods of interruption (Ausfallzeiten) or 1. Observations of the Government of supplementary periods (Zurechnungs­ the Federal Republic of Germany zeiten) must be taken into account as such, the contributions paid under the The observations of the Federal Govern­

legislation of another Member State and ment may be summarized as follows: affiliation to the pension insurance A — The question put to the Court scheme of another Member State shall should be understood as follows: when

LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ v WELCHNER

More the conditions obtaining in other Mem over, on the ground set out at B above, ber States in order to calculate the it is impossible in this case to take into 'assimilated periods' under German law: account the 'substitute period in dispute. in the original text Annex G mentions (b) The Federal Government adds that in this connexion only the supple this interpretation is confirmed by mentary periods'; 'periods of inter Annex G to the regulation, since, in ruption' were only added in Regulation establishing a special system for each No 130/63 (cf. above I (2) (b)).

2. Observations of the Commission of periods'. Moreover the important factor in those latter cases is not that the the European Economic Communities contributions have been paid but that The Commission puts forward the there was an insurance or that the following points in particular: person concerned subsequently com The question submitted to the Court menced a compulsorily insurable must be answered in the affirmative for occupation. the following reasons: Furthermore, Annex (G) (I) (B) refers A — One must 'begin by considering to periods 'which under German legisla what interpretation must be given to tion constitute periods of interruption Article 28 of Regulation No 3. or supplementary periods'; this is an (a) This provision must be interpreted additional reason for stating that in in the light of Articles 48 to 51 of the principle national law is the basis on EEC Treaty. which it must be decided whether one Under the terms of Article 51, the is faced with assimilated periods, and measures to 'be adopted by the Council that the system established by Annex G must secure the aggregation of all constitutes the exception. periods 'taken into account' under the (d) The origin of this system, the laws of the several countries; the Federal Government continues, pre 'substitution' periods recognized by cludes the supposition that, although German law correspond to this defini 'substitute periods' were not mentioned, tion.

Regulation No 3 satisfies this require­ by ignoring the 'nationality' of the dis­ ment by 'defining as widely as possible' puted period (1947 to 1951) that the the various periods to which it is to be objectives of the Treaty and of the applied. Besides 'insurance periods' regulation will be observed. To do ('Versicherungszeiten') and 'periods of otherwise would, on the contrary, result employment' ('Beschäftigungszeiten') it in awarding insured persons who worked includes 'assimilated periods' ('gleich­ from 1947 to 1951 in another Member gestellte Zeiten'). These concepts are State, all other factors being moreover defined in Article 1 (p) to (r). They perfectly equal, a lower pension than must therefore foe accepted as having a that paid to insured persons working Community meaning. Consequently it in Germany at this time. This result is of little importance what German law is incompatible with the case-law of the intends by 'assimilated periods'. Under Court. German legislation, 'substitute' periods The Commission points out that in are 'taken into account' ('angerechnet'); addition its argument does not mean this amounts to saying that they are that the total of the periods to be 'taken into consideration' ('berück­ aggregated under Community law is sichtigt') under this legislation, in greater than the total number of accordance with the provisions of Article periods to be taken into consideration 51 of the EEC Treaty, and that they under the legislation of the Member are 'assimilated' ('gleichgestellt') to States concerned; in fact the plaintiff insurance periods, within the meaning would only be credited with 167 (106 of Regulation No 3. + 61) months of insurance by German (b) The Bundessozialgericht, the Com­ law and with 45 months of insurance mission continues, is correct in taking by French law. as its basis the concept that periods B — It is clear from these reasons that abroad cannot be equivalent to German the interpretation of Annex G to the periods for the constitution of assimila­ regulation only plays a subordinate ted periods unless they satisfy the condi­ role: tions required by German legislation (a) If it is considered, with the Com­ for the constitution of periods. But this mission, that an examination of Articles is what in fact occurs in the present 27 and 28 of Regulation No 3 alone case, since in the three years after the is sufficient to entail an affirmative expiry of the 'substitute' period the response, this amounts to finding that plaintiff commenced a compulsorily express confirmation in the Annex insurable occupation. The additional would 'be pointless. Moreover Germany condition required by the German may not apply a system differing from courts, that is to say, the payment of that of the other Member States. contributions in the course of this (b) Furthermore the reasoning by occupation, was satisfied by the plain­ analogy adopted by the XIIth Senate tiff in France as well. of the Bundessozialgericht (cf. above, (c) Although it is impossible to invoke I (2) (b)) is illogical. There is no the letter of Articles 27 and 28 of reason to accord to 'supplementary Regulation No 3 to give an affirmative periods' treatment differing from that response to the question put, it is only accorded to 'substitute periods'.

Article 1 (r) of Regulation No 3 provides that 'for the purposes of this Regulation ... the term "assimilated periods" means periods treated as insur­ ance periods or, where applicable, as periods of employment, as defined in the legislation under which they were completed, in so far as they are regarded by the said legislation as being equivalent to insurance periods or periods of employment'. This double reference to national legislation sets forth very clearly the principle that the said regulation, in so far as it takes 'assimilated periods' into account, intends neither to modify nor supplement national law, provided that the latter observes the provisions of Articles 48 to 51 of the Treaty. In particular,' the phrase 'in so far as they are regarded ... as being equivalent .. shows that the regulation is also referring to the conditions under which national law will regard a given period as being equivalent to insurance periods properly so-called.

This interpretation is confirmed by the tenor of Annex G (I) which forms an integral part of Regulation No 3 under the terms of Article 50 thereof. In fact Annex G (I) (B) (1) provides that 'In determining whether periods which under German legislation constitute periods of interruption (Ausfallzeiten) or supplementary periods (Zurechnungszeiten) must be taken into account as

JUDGMENT OF 5. 12. 1967 — CASE 14/67

such, the contributions paid under the legislation of another Member State and affiliation to the pension insurance scheme of another Member State shall be assimilated to the contributions paid under German legislation and affiliation to the German pension insurance scheme'.

The costs incurred by the Government of the Federal Republic of Germany and by the Commission of the European Communities which submitted observations to the Court are not recoverable. As these proceedings are, in so far as the parties to the main action are concerned, in the nature of a step in the action pending before the IVth Senate of the Bundessozialgericht the decision on costs is a matter for that court.

On those grounds,

Upon reading the pleadings; Upon hearing the report of the Judge-Rapporteur;

LANDESVERSICHERUNGSANSTALT RHEINLAND-PFALZ v WELCHNER

Upon hearing the oral observations of the German Government and of the Commission of the EEC; Upon hearing the opinion of the Advocate-General; Having regard to the Treaty establishing the EEC, especially Article 51; Having regard to the Protocol on the Statute of the Court of Justice of the EEC, particularly Article 20; Having regard to Regulation No 3 of the Council of the EEC concerning social security for migrant workers (Official Journal of 16 December 1958, p. 561 et seq.), especially Articles 1 (r), 27 and 28 together with Annex G (I); Having regard to Regulation No 130/63/EEC of the Council amending cer­ tain annexes to Regulation No 3 and Regulation No 4 (Official Journal of 28 December 1963, pp. 2996/63 et seq.), especially Article 6; Having regard to the Rules of Procedure of the Court of Justice of the Euro­ pean Communities;

THE COURT

A. Van Houtte R. Lecourt

Registrar President